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Tumblr Makes First Appearance Before the Supreme Court

One of the world's most solemn institutions recently met one of the web's silliest sites — seriously. Justices and GIFs came together when, for the first time, a Tumblr page featured prominently in a brief presented to the U.S. Supreme Court.

Harvard Law professor and political activist Lawrence Lessig created the “Corruption," originally. Tumblr as what he called the centerpiece of a brief he submitted in the McCutcheon v. Federal Election Commission case (.PDF), a challenge to current campaign contribution limits.

Lessig used the Tumblr page to aggregate his survey of how the framers of the U.S. Constitution used the word "corruption." The page catalogues 325 uses of the word by figures such as George Washington, John Adams, Thomas Jefferson, James Madison, George Mason and Patrick Henry.

"The basic argument of the brief is that the Framers of the Constitution used the word 'corruption' in a different, more inclusive way, than we do today," Lessig blogged earlier this week. In the same post, Lessig called this the first ever use of Tumblr in an argument submitted to the Supreme Court.

In the case, Shaun McCutcheon, an Alabama businessman, and the Republican National Committee argue that current aggregate limits on campaign contribution from individuals are unconstitutionally low, in violation of the First Amendment.

McCutcheon's argument is that individuals should be able to contribute more in total — not necessarily to individual candidates but to various campaigns, political party committees and political action committees. And since contribution limits to individual candidates and groups would remain intact, increasing the limit for aggregate donations would not increase corruption in the form of people paying politicians for favors.

"McCutcheon’s argument, however, depends upon a modern understanding of the term 'corruption,' in sharp conflict with the term’s original meaning," reads Lessig's brief. "The Framers viewed corruption as one of the greatest threats to government."

The modern focus of corruption, according to Lessing, is what he calls "quid pro quo" corruption, which focuses on the direct exchange of resources for favors between individuals and groups.

Lessig, who founded the campaign finance reform-focused Rootstrikers movement, is attempting to prove that aggregate campaign contribution limits protect against "institutional corruption," a chief concern among the framers. He made his case in the aforementioned blog post.

And one prominent example of the institutional corruption they were concerned about was an institution developing an improper dependence. Like — to pick just one totally random example — a Congress developing a dependence upon its funders, rather than the dependence the framers intended — “on the People alone.”

By using the exact words of the founding fathers of the constitution, Lessig is appealing to the "textualist" or "originalist" justices — those who base their decisions strictly on its text.

The court is scheduled to hear oral arguments in the case on Oct. 8.

It's worth noting that Lessig's Tumblr eschews GIF use altogether, in fact the entire page is absent of images. Perhaps he doesn't understand how to unlock the full power of the medium, or maybe he thought the Supreme Court just isn't ready for that yet. The jury's still out.

Image: Steve Petteway, Collection of the Supreme Court of the United States

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